Delhi District Court
State vs (1) Sunil Kumar S/O Amar Singh on 18 August, 2010
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE-
05(NE): KARKARDOOMA COURTS: DELHI.
SC No. 100/10
Date of institution: 16.5.2007
Received on transfer-06.3.2010
Reserved for order: 2.8.2010
Date of delivery of order: 11.8.2010
State vs (1) Sunil Kumar s/o Amar Singh
(2)Rinku @ Anil s/o Amar Singh
(3)Amar Singh s/o Late Narayan Prasad
(4)Jayanti @ Bhoora w/o Amar Singh
All R/o Khasra No.264, Gali NO.5,
Meet Nagar, Delhi.
FIR NO. 167/07
PS Nand Nagri
U/s 302/498A/34 IPC
JUDGMENT:-
1. As per the prosecution, this is a case of bride burning. The deceased Kusum was burnt at her nuptial home by accused persons. The criminal law was set into motion, on receipt of an information in Police Station Nand Nagri on 6.3.2007, regarding admission of Kusum w/o Sunil Kumar from GTB Hospital. The information was recorded vide DD No.26B and was assigned to PW20 ASI Bhupinder Singh who alongwith Const. Ombir reached GTB Hospital and obtained MLC Ex.PW18/A of injured Kusum and found her fit for statement. He also called the concerned SDM to record the statement of Kusum. On 6.3.2007, itself PW1 Yogesh Pal Singh, Tehsildar, recorded statement of injured Kusum Ex.PW1/A in GTB Hospital and he made his endorsement Ex.PW1/B thereupon and forwarded the same to SHO PS Nand Nagri, on the basis of which a case u/s 498A/307/34 IPC and 3 /4 Dowry Prohibition Act was registered against the husband and in-laws of Kusum vide FIR Ex.PW4/B. PW-20 ASI Bhupinder Singh collected the burnt pieces of clothes (collectively Ex.P3) lying near the bed of Kusum in GTB Hospital which she was wearing at the time of incident. PW-20 ASI Bhupinder Singh produced the same before PW21 Inspector C.M. Meena who seized the same vide seizure memo Ex.PW15/A. Thereafter Inspector C.M. Meena alongwith PW-20 ASI Bhupinder Singh reached the spot i.e. at H.No. 264, Meet Nagar, Delhi and summoned the crime team at the spot. The crime team inspected and photographed the spot and the positive photographs are Ex.PW14/A-1 to Ex.PW14/A-6 and the negatives are Ex.PW14/A-7 to A-12. PW-21 Inspector C.M. Meena prepared site plan FIR No.167/07 PS Nand Nagri 1/29 Ex.PW21/A of the spot at the instance of PW20 ASI Bhupinder Singh. The burnt pieces of quilt, pillow, bed sheet (collectively Ex.P2) and one plastic can containing some quantity of kerosene oil (Ex.P1) with two burnt sticks and one empty match box (Ex.P5) which were lying at the spot were seized from the spot vide Ex.PW20/A to Ex.PW20/D. PW-21 Inspector C.M. Meena alongwith PW20 ASI Bhupinder Singh reached GTB Hospital where brother of deceased Kusum namely Sunder and her other relatives met them and a written complaint and the photographs of the marriage Ex.PW3/A, A-1 and A-2 were handed over to them by the brother of deceased which were seized vide seizure memo Ex.PW3/B. PW-21 Inspector C.M. Meena recorded the statement of parents and brother of the deceased Kusum and thereafter arrested the accused persons after conducting their personal search. On 11.3.2007, PW-21 Inspector C.M. Meena received an information regarding death of deceased vide DD NO.13 B copy of which is Ex.PW20/X and he informed this fact to SDM. On 12.3.2007, PW1 Yogesh Pal Singh reached GTB Hospital and recorded the statement Ex.PW1/C of Sh. Ram Lal, father of deceased Kusum at mortuary GTB Hospital and made his endorsement Ex.PW1/D over the same and handed it to SHO for taking action. PW-1 Sh.Yogesh Pal Singh prepared inquest proceedings in respect of deceased Kusum including request of postmortem vide Ex.PW1/E and Ex.PW1/F and he also recorded the statement of Sunder and Ram Lal vide Ex.PW1/G and Ex.PW1/H regarding identification of dead body of Kusum. Postmortem on the dead body of Kusum was conducted by PW5 Dr. Atul Gupta vide postmortem report Ex.PW5/A. He also preserved scalp hair of deceased for chemical analysis and seized the same in an envelope and handed over the same to IO PW21 Inspector C.M. Meena which were seized vide seizure memo Ex.PW20/H. Dead body of deceased Kusum was handed over to brother of deceased vide receipt Ex.PW21/B. On the death of Kusum, section 302 IPC was added in place of section 307 IPC. On 19.3.2007, Inspector C.M. Meena collected the postmortem report Ex.PW5/A of the deceased. On 29.4.2007, exhibits of this case were sent to FSL through PW-17 Const. Braham Parkash which were deposited at CFSL Kolkata. On 4.5.2007, Inspector C.M. Meena alongwith PW16 SI Mukesh Kumar Jain went to the spot i.e. house on Khasra No.264, Gali NO.5, Meet Nagar, Delhi, who inspected the spot, took measurement and prepared scaled site plan Ex.PW16/A and after completing the necessary formalities, charge sheet was filed before the court. In respect of one of the accused Neetu being a juvenile, charge sheet was filed before Juvenile Justice Board.
FIR No.167/07 PS Nand Nagri 2/29
2. In pursuance of Section 207 Cr.P.C. necessary copies were supplied to the accused persons. On finding a prima facie, accused persons were charged for the offence punishable u/s 498A/302/34 IPC to which they pleaded not guilty and claimed trial.
3. To bring home, the guilt of the accused persons, 21 witnesses have been examined on behalf of the prosecution. The material prosecution witnesses are PW-1 Sh. Yogesh Pal Singh, Tehsildar, PW-2 Sumantra, mother of deceased Kusum, PW-3 Sunder, elder brother of the deceased, PW-5 Dr. Atul Gupta, who conducted postmortem on the dead body of deceased, PW-6 Dr. Ram Millon from GTB Hospital who recorded death summary Ex.PW6/A and gave death certificate Ex.PW6/B in respect of Kusum, PW-7 Sh. Ram Lal, father of deceased Kusum, PW9 Dharmender who is the cousin brother of deceased Kusum, PW20 ASI Bhupinder Singh and PW-21 Inspector C.M. Meena, IO of the case.
4. Statements of accused persons were recorded u/s 313 Cr.P.C. in which they denied the prosecution case and pleaded innocence and have taken the plea that Kusum committed suicide as she was having suicidal tendencies and they had no role to play in any offence. They took Kusum to hospital after extinguishing the fire and got her admitted in the hospital. However, the accused persons have not examined any defence witness.
5. I have given my anxious consideration to the contentions of Ld. APP for state and counsel Mr. Dharmender Kumar on behalf of accused persons and analyzed the evidence placed on record.
6. It is not disputed that the deceased Kusum had met her death on account of 75% burn injuries sustained in the matrimonial home. This even otherwise stands proved from her postmortem report Ex.PW5/A which discloses that the cause of death in this case is septicaemic shock due to antemortem flame burns involving 75% of body surface area. PW-5 Dr. Atul Gupta, who performed postmortem on her body stated in his testimony that he found superficial to deep antemortem flame burns all over the body except on a small area on upper part of face, lower aspect of left leg and back of chest and abdomen. The burnt area involved was 75% of the total body surface area.
7. The prosecution hinges its case on the dying declaration of the deceased Kusum. PW1 Sh.Yogesh Pal Singh, Tehsildar Seema Puri, Shahdara, stated FIR No.167/07 PS Nand Nagri 3/29 that on 6.3.2007, on receipt of information regarding admission of injured Kusum, he reached GTB Hospital and found Kusum w/o Sunil admitted there. Doctor opined her as fit for statement as per her MLC. He recorded statement of Kusum w/o Sh. Sunil running in three pages. The same has been proved as Ex.PW1/A, which is in his handwriting and bears his signatures at point X, X1 and X2 on all the three pages. Kusum also signed the same at point Y, Y1 and Y2 on all three pages.
8. In her last statement before her death Ex.PW1/A, the deceased Kusum has stated that she was giving the statement in her full consciousness and without any pressure. She has stated that her parents who reside at Hapur, married her to Sunil s/o Amar Singh, R/o 264-B, Gali No.5, Meet Nagar, Delhi, about 1 ½ year back as per Hindu rites and customs. At the time of marriage, she was given furniture, double bed, dressing table, almirah, T.V., cooler, sewing machine and utensils in dowry. In the matrimonial home, there were her father in law, mother in law, brother in law and sister in law. Her husband used to learn stitching work. Her mother in law namely Bhoora used to ill treat her and would say that her father had robbed her son (her husband) and he did not give anything in marriage. She demanded a washing machine. She used to taunt her day and night. Her husband, sister in law and brother in law also used to support her mother in law. About 15 days prior to the incident, her younger sister in law Neetu gave her beatings because she visited residence of her elder sister in law who used to live in front of their house. Her brother in law Rinku also used to say nasty things to her. Rinku used to threat her saying that "TU MERE HATHTHE NAHIN CHARI, JIS DIN MERE HATHTHE CHARI, TU BHAGTI NAZAAR AIYGE". Her father in law Amar Singh also used to threat her saying that they had fed her enough and now she should go to her parental home and they would not keep her any longer. Due to their behaviour she used to remain tensed but would not speak anything to them. She has further stated that on 6.3.2007, the day on which her statement was recorded, she had been feeling unwell and was taking rest. Her mother in law started wrangling with her and told her that she did not do any work and would take rest all the time. When she told her that she was taking rest only after finishing the house hold chores and that she was feeling unwell, she started shouting and using intemperate language, when she went upstairs, her husband wielded a danda and gave her beatings as a result of which she sustained injuries in both her hands but could not show the same due to bandage. She also got blue marks on her leg due to beating. Her husband left after giving her beating. She started weeping and thereafter fell asleep covering her with a bed sheet. When FIR No.167/07 PS Nand Nagri 4/29 she woke up due to inflammation, she found her suit burning and there was smell of kerosene oil. She started screaming and her entire body was ablaze. On hearing her cries, her neighbours and her family members came and they extinguished the fire. She was taken to GTB Hospital in a rickshaw by her mother in law, a neighbour and her elder sister in law. She has stated that her husband Sunil, mother in law Bhoora, brother in law Rinku and younger sister in law Neetu are responsible for her burns. She has stated that while she was asleep, they poured kerosene oil on her and set her ablaze. That these people used to harass her constantly as her parents were unable to fulfill their demands, the accused persons had tried to kill her by setting her on fire and she wanted that legal action be taken against the accused.
9. As per MLC Ex.PW18/A which was prepared on 6.3.2007 at 10 a.m. she was stated to be fit for statement. PW1 Sh.Yogesh Pal Singh has stated that when he reached GTB Hospital, the doctor opined Kusum fit for statement as per her MLC and he recorded her statement. In his cross examination, he has stated that he spoke to the doctor, whose name he did not remember, to know about her fitness and he was sure about the fact that she was in a fit mental condition to give her statement, before he recorded her statement. He also stated that he read over the statement to the injured and after hearing it and finding it correct, she appended her signatures over it. In his cross examination he has stated that he did not obtain the signatures from the doctor on the statement Ex.PW1/A. No doctor was present when he recorded the statement of Kusum. However, when he began recording the statement, doctor was present. He enquired from him if Kusum was in a fit mental condition to give the statement and after he told him that she was in a fit mental condition, he began writing the statement and the doctor left. He stated that no one was present at the time of recording of statement of deceased.
10. PW-1 has further stated that Kusum died in the hospital on 11.3.2007 and on the next day i.e. 12.3.2007, he recorded statement of Ram Lal, father of Kusum at mortuary GTB Hospital which is Ex.PW1/C running into two pages bearing his signatures at point C1 and C2. The witness Ram Lal also signed the same at point X and X1 on both the pages and he made his endorsement Ex.PW1/D directing the SHO for necessary action.
11. The statement of Ram Lal , father of deceased Kusum was recorded at 12.15 P.M. on 12.3.2007 wherein he stated that he was giving his statement in his full consciousness and without any pressure; that he married his daughter FIR No.167/07 PS Nand Nagri 5/29 Kusum to Sunil about 1 year and three months back. At the time of her marriage, he gave furniture, bed, chair-table, dressing table, utensils, bedding, almirah, cooler, sewing machine etc. Everything was fine for 4 to 5 months. Thereafter, in-laws of his daughter began taunting and harassing her for dowry. Whenever she came to her parental home, she used to cry and would tell them that her mother in law was demanding a motorcycle and would say that "her father had robbed her son" (her husband) and nothing had been given in the marriage. After a few days Sunil, husband of his daughter told him "Papa Mujhe Three Wheeler dilwao". When he told him that he was very poor and could not give him a three wheeler, he started pressurizing him. Whenever his daughter made a telephonic call to them, her mother in law would remain present and they never allowed her to speak in private. He, his brother and his sons tried to make them understand that they were poor people and could not fulfill their demands of dowry, but they never understood. Neetu, sister in law of Kusum also used to taunt her. On 6.3.2007 a neighbour of Kusum made a telephonic call to them through which they came to know that Kusum had sustained burn injuries. He alongwith his sons reached GTB Hospital and met Kusum and she told them that her in laws were harassing her severely. In the morning on 6.3.2007 Sunil (her husband) gave her severe beatings with danda on being instigated by her mother in law and sister in law. She also told him that they all had poured kerosene oil upon her when she was asleep covering herself with a bed sheet. He further stated that his daughter died yesterday at 10.30 a.m. at GTB Hospital and for the death of his daughter her husband Sunil, her mother in law Bhoora, father in law Amar Singh, sister in law Neetu and brother in law Rinku are responsible and an action be initiated against them.
12. In his testimony before the court as PW7, father of the deceased Kusum Sh. Ram Lal has stated that his daughter stayed happily at the matrimonial home for about 4/5 months and thereafter her inlaws started saying to his daughter that, 'your father has cheated us and did not give anything'. Thereafter they started making demand of motorcycle. The husband of his daughter Sunil was not doing any work and therefore, they asked him to get an autorickshaw (three wheeler) for his livelihood. He told them that he was a poor person, a labourer maintaining his children and was not in a position to meet their demands, thereafter they started beating his daughter. His daughter used to tell him that all the family members used to beat and harass her and demanded motorcycle. After two days of Holi, he did not remember the date and month, he received the information through some neighbour of in-laws of his daughter that his daughter had been burnt by her in-laws. He reached GTB Hospital and met FIR No.167/07 PS Nand Nagri 6/29 his daughter who told him that she was beaten and her husband Sunil poured kerosene oil on her and burnt her. She further told him that at that time she was sleeping having covered herself with a bed sheet (chaddar orh kar so rahi thi) and thereafter she died in the hospital after 8/9 days.
13. In his cross examination, he has stated that at the time of marriage, accused Sunil was doing plumbing work of sub-mercible pump. He has also stated that his statement was recorded twice in this case. Both the statements were recorded by separate persons on separate dates and at different places. His first statement was recorded at GTB Hospital and other statement was recorded at juvenile court. He again told that apart from the court his statement was recorded once at the hospital and he also admitted it to be correct that his statement was recorded by one person. He also admitted that his statement was recorded by police. He put his signature on Ex.PW1/C at point X and X1 in the presence of police official. There were many police persons present when he signed the above said document. He admitted that the statement Ex.PW1/C was neither read over to him nor the same was read by him after signing the same. He has further stated in his cross examination that before he reached GTB Hospital his son Sunder, Sh. Nain Singh, Sh. Sampat, his wife Sumantra, his sister Ramwati reached the hospital. They reached the hospital at about 10 / 11 a.m. and he reached the hospital after three days of the burning incident. He stated that he was not having any telephone or mobile at his home at the time of incident and phone came at the STD Booth. The STD booth is at 250/300 sq. yards from his house. The STD booth is owned by one Pandit but he did not know his name. He never visited any neighbour of in-law of his daughter. He had no acquaintances with them. His children used to go to in-laws and they had exchanged the telephone number with the neighbour. In his cross examination, he stated that he did not know that prior to marriage, her deceased daughter once jumped from the roof of first floor and on one occasion she also tried to commit suicide by jumping on the railway track. He denied the suggestion that his daughter was short tempered and on many occasions she had threatened to commit suicide as she was having suicidal tendency. He further stated that he could not tell the date and month when any of the accused persons made dowry demand from him. He also stated that accused demanded motorcycle. The demand was made to him directly. When this demand was made, his wife was also present. He had told about this demand to his elder son Sunder and this demand was made six months prior to the death of his daughter.
FIR No.167/07 PS Nand Nagri 7/29
14. Another material witness is PW2 Smt. Sumantra, mother of the deceased Kusum who stated that all the accused persons harassed her daughter for unlawful demand of dowry. Accused persons also gave beatings to her daughter and they demanded TSR but they could not arrange TSR being poor. Accused persons also used to taunt her daughter Kusum. She did not remember the date of incident, but she was told about the incident by a neighbour. Since she was resiling from her previous statement, she was cross examined by the Addl. PP. In her cross examination she admitted that they had given furniture, big colour T.V., sofa, cooler, gold chain, gold ear rings, gold ring, mangal sutra, pajeb,utensils, clothes, CD player, sewing machine etc. in the marriage of her daughter Kusum. She admitted that accused persons were not happy with the dowry articles. Whenever Kusum came to them, she used to complain against the accused persons. She also admitted it to be correct that the accused persons used to demand TSR and Rs.1 lac. She also admitted that when she came to the hospital she saw her daughter Kusum in burnt condition in GTB Hospital. On asking, her daughter told her that she was set on fire by pouring kerosene oil by her father in law and mother in law, Amar Singh and Jayanti, nanad Neetu, husband Sunil and devar Rinku for not bringing TSR in dowry. She was cross examined by the defence. In her cross examination she has admitted that her daughter used to get angry. However, she stated that her daughter would get angry as and when she was harassed. She stated that her daughter did not give any statement to any one in her presence. She denied the suggestion that her daughter set herself on fire after quarreling with her husband. She also denied the suggestion that the accused persons did not demand any TSR. She also denied the suggestion that accused did not demand Rs.1 lac . She stated in her cross examination that the police recorded her statement after the incident. Her statement was not read over to her. That she did not know the contents of the statement recorded by IO and her statement was recorded in the hospital.
15. Another material witness is PW3 Sunder who stated that after the marriage of Kusum all the accused persons started harassing his sister Kusum. Accused persons used to demand a three wheeler. They also used to say that if TSR was not given to them, then Rs.1 lac should be given to them. He alongwith his parents requested the accused persons that they were not in a position to give TSR or Rs.1 lac to them as they had already spent a huge amount on the marriage of Kusum. On telephone, his sister Kusum told him that she was being given beatings by the accused persons for Rs. 1 lac. He also talked to them on telephone and he promised that he would arrange whatever he could, but all the FIR No.167/07 PS Nand Nagri 8/29 accused persons did not bother and continued harassing his sister Kusum for unlawful demand of TSR or Rs.1 lac. On 4.3.2007, all the accused persons gave beatings to his sister Kusum, she got fracture in her hand. Kusum telephoned him and told this fact. He assured Kusum that he would come to her, the next morning. On the next day in the morning time, when he was preparing to go to Kusum, at about 9 a.m. some neighbour of Kusum telephoned them that Kusum was set on fire. Thereafter on the receipt of this information he alongwith his brother reached the house of accused persons and on making enquiries they came to know that Kusum had been taken to GTB Hospital. They reached GTB Hospital where Kusum met them. On making enquiries, Kusum told them that if they could reach at her in-laws, the previous night she could not have been set on fire by accused persons. Kusum further told that she was forcibly laid and she was tied with cot and accused persons Sunil, Amar Singh, Devar Rinku, mother in law Bhoora and nanad Neetu poured kerosene oil on her and then she was put on fire by accused persons. He identified the dead body of his sister in the mortuary of GTB Hospital.
16. In his cross examination, he stated that he did not go through the contents of the statement u/s 161 Cr.P.C. He admitted it to be correct that he himself did not read the contents of the statement nor it was read over to him by the police officials. He did not know the contents of the same. He further stated that he had stated to the police that accused persons were demanding Rs.1 lac from him. (Confronted with his statement Ex.PW3/DA wherein the names of all the accused are not mentioned except accused Sunil). He further stated that he had told the police in his statement that his sister Kusum told him that she was given beatings by accused persons for Rs.1 lac. (Confronted with his statement Ex.PW3/DA wherein it was not so recorded. He admitted that he had not stated to the police in his statement that Kusum told him that she was forcibly laid and tied with cot.
17. It has been contended by Counsel for the accused persons that the family of the deceased belonged to labour class and they did not have means so there is no question of any demand of dowry. PW-3 Sunder has stated in his cross examination that at the time of marriage of their sister Kusum, three brothers and their father were working as labourer. His father was earning Rs.100/- per day and he himself and his brothers were earning Rs.150/- to 200/- per day. He also admitted that ordinarily one does not get work for entire month. He also admitted that sometimes for 15 days, sometimes for 20 days and sometimes for 25 days in a month they get work . They used to earn about Rs.5000/- each on FIR No.167/07 PS Nand Nagri 9/29 an average and his father used to earn Rs.2500/- p.m. He admitted that the accused persons had not made any demand of dowry at the time of marriage; that accused Jayanti @ Bhoora mother in law and Amar Singh, father in law did not make any demand of dowry directly from him. He also admitted that his father never visited the matrimonial home of his deceased sister from the date of her marriage till her death. He has also stated that statement of his sister was not recorded in his presence which goes to corroborate the statement of PW1 Sh.Yogesh Pal Singh, Tehsildar, who recorded dying declaration of the deceased. PW3 Sunder has stated that they were asked to go out of the ward. He also denied the suggestion that his sister had once jumped from the roof and also denied the suggestion that once she jumped on the railway track to commit suicide. He also denied that his sister was short tempered by nature and used to say that she would commit suicide. The defence of the accused persons are that the deceased was not set ablaze by them rather she herself committed suicide. However, all the witnesses have categorically stated that she had no suicidal tendency and she never tried to commit suicide in the past.
18. Another material witness PW-9 Dharmender, cousin of deceased Kusum has stated in his testimony that deceased Kusum was daughter of his Chacha. After about 2-3 months of her marriage, Kusum came to her parents home and told them that Sunil was unemployed and her in laws were demanding one three wheeler for his work. She stated regarding the demand of three wheeler in his presence. Thereafter, he along with Sunder the real brother of Kusum went to the house of her in laws at Meet Nagar near Nand Nagri. They stated to them they could not pay the entire amount of three wheeler but they could provide up to Rs. 20,000/- for support. After about one month again Sunil and his mother started beating the deceased Kusum. But they did not give much attention to the same considering it to be normal house hold wear and tear in the family. 15 days before 06.03.07, the date of incident, Kusum came to her matrimonial home and started crying and stated that she apprehended that she may be killed by them and therefore asked them to pay the amount for TSR to them. They assured her that they would come to her and nothing would happen and sent her back to her matrimonial home. On 05.3.07 Sunder told him that he had received a phone call of Kusum and she had told him that she was badly beaten by Sunil, her mother in law Bhuro, Devar Rinku, nanad Nitu and Amar Singh had abused her. She also told Sunder that either bring the money the next morning or take her back to her maternal home. PW-9 told Sunder that it was night time and they would go tomorrow morning to her matrimonial home. On the next FIR No.167/07 PS Nand Nagri 10/29 morning, when they were getting ready for going to her matrimonial home. Sunder came to his house running and told him that he had received a telephonic call of the neighbour from matrimonial home of Kusum that Kusum had been beaten and thereafter she was set on fire and asked him to hurry. On the 6th morning at about 10.15-10.30 A.M. he along with Sunder, Dharambir, Pramod, Rajesh his mama's son reached at Meet Nagar. The neighbour at Meet Nagar told them that Kusum had been taken to the Hospital thereafter they reached Hospital and enquired about her. After searching, they met her at GTB hospital. She was having dressing on all parts of the body except her mouth and eyes. They enquired from her as to how it had happened, she stated that 'BHAIYA MAINAY RAAT KO PHONE KIYA THA YADI AAP RAAT KO AAJATE TO SHAYAD YE LOG MUJHE NAHI MARTE'. He asked as to who had beaten her and she stated that she was beaten on the previous night. She was probably having fracture in her hand and was beaten with danda and her entire body had blue marks on account of beating. She told him that she slept at 3.00 AM and could not get up early in the morning and when she got up she heard the sound of TV at high volume. She asked her husband Sunil to decrease the volume on this he asked her to cover her face and sleep and put sheet on her face and after sometime they set her on fire. She was held by three persons i.e. Neetu, Rinku, her mother in law and Sunil had put cloth on her. He did not know who poured kerosene oil on her. On hearing this they became angry and searched for the in laws of Kusum in the hospital but they were not found in the hospital. Thereafter when they returned to Kusum, they saw some officer was recording statement of Kusum and they were not allowed to go near her. Father in law of Kusum was at roof when she was set on fire. Father in law of Kusum later on met them at the park in the hospital.
19. In his cross examination on behalf of the prosecution PW-9 Dharmender has admitted it to be correct that Kusum told him at GTB hospital that on account of non fulfillment of dowry demand her husband Sunil, Saas Bhoora, Sasur Amar Singh, Nanad Nitu and Devar Rinku had after pouring kerosene oil on her by lighting the match stick set her on fire. He also admitted it to be correct that the demand was of either three wheeler or of Rs. 1 lac. He was cross examined on behalf of the defence where he stated that police had recorded his statement in this case on 06.3.07. Statement was recorded as narrated by him. He had gone through the statement. He had stated in his statement that in the marriage the father of Kusum had given her dowry. He was confronted with statement Ex.PW-9/DA where it was not so recorded. He further stated that the police had asked him to give in writing whatever he wanted to FIR No.167/07 PS Nand Nagri 11/29 say and he had given the same in writing. Vinod Sagar of Hapur had given in writing. He did not read the writing given by Vinod. Again said he had read over the contents of the facts which was written by Vinod. He further admitted that the police did not record his statement in this case. Police used to make inquiry from him time to time but they did not record his statement. He also stated that he did not tell the police in his statement that 15 days before 06.03.2007, the day of incident, Kusum came to her maternal home and started crying and stated that she apprehended that she may be killed by them. In his cross examination he also stated that he had not stated to the police in his statement that when he met Kusum at the hospital she was having dressing on all parts of her body except her mouth and eyes. He had stated to the police in his statement that he inquired from her as to how it happened. She stated that 'BHAIYA MAINE RAAT KO PHONE KIYA THA YADI AAP RAAT KO AA JAATHE TO SHAYAD YE LOG MUJHE NAHI MAARTE'. He was confronted with statement Ex. PW9/DA where it was not so recorded. He further stated that he had stated to the police in his statement that Kusum put a sheet on her face and after sometime they set her on fire. She was held by three persons i.e Neetu, Rinku, her mother-in-law and Sunil had put cloth on her. He was confronted with statement Ex. PW-9/DA where it was not so recorded. He further stated that Sunil and his mother made demand of dowry in their house in his presence. He had stated to the police in his statement that demand of dowry was made by Sunil and his mother. He was confronted with Ex.PW-9/DA where it was not so recorded. He also admitted that only the statement which was written by Vinod was his statement except that no statement of him was recorded. He could not identity the handwriting of Vinod. He did not know whether Ex.PW-9/DA is in handwriting of Vinod or not. The statement which was written by Vinod was signed by him. He admitted that statement Ex. PW9/DA does not bear his signature. He also admitted it to be correct that statement Ex. PW9/DA is not his statement. The examination and cross examination of the relatives of the deceased reflect that there are many improvements and inconsistencies.
20. Section 498A IPC reads as under:
Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of the woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purpose of this section, "cruelty" means-
(a) Any wilful conduct which is of such a nature as is likely to drive the woman FIR No.167/07 PS Nand Nagri 12/29 to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
21. To prove that the deceased was subjected to cruelty by her husband and relatives of her husband, the prosecution has to prove (1) she was subjected to cruelty or harassment, (2) such cruelty or harassment was by the husband and relatives of her husband, (3) that such harassment was with a view to coercing her or any person related to her to meet any unlawful demand of property and on account of failure by the deceased and the person related to her to meet such unlawful demands.
22. The prosecution witnesses who have stated about the various demands made by the accused persons are the relatives of the deceased or are interested witnesses. It would be relevant herein to reproduce the observation of apex court in case of Ramanand Yadav Vs Prabhu Nath Jha (2004) Cri L J 640 SC if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. If the materials show that there is a partisan approach, as indicated the above, the court has to analyse the evidence with care and caution.
23. In the instant case though the deceased Kusum in her dying declaration Ex. PW-1/A stated that her mother in law demanded a washing machine but other witnesses examined by the prosecution who are the relatives of the deceased have not stated anything about the demand of washing machine. PW-2 Sumantra mother of deceased stated that the accused demanded TSR. However, on cross examination by the prosecution she stated that they demanded TSR and Rs. 1 lac. PW-3 Sunder, brother of the deceased stated that the accused persons demanded TSR and if TSR was not given then Rs. 1 lac which means that accused were not demanding TSR and Rs. 1 lac both and they demanded Rs. 1 lac only in case TSR was not given. However, in the cross examination the witness has tried to improve upon, stating that firstly they demanded a three wheeler and thereafter they demanded Rs. 1 lac. He could not tell the date, month and year when such demand was made. PW-7 Sh. Ram Lal father of the deceased stated that the accused were demanding motorcycle.
FIR No.167/07 PS Nand Nagri 13/29 It is baffling that only this witness has stated about the demand of motorcycle. All other witnesses have stated about TSR and Rs. 1 lac. He has further stated that since her (deceased) husband was not working, they demanded an auto rickshaw for his livelihood and his daughter told that they demanded motorcycle. Though the deceased in her dying declaration did not mention even a single word about the demand of motorcycle. PW-9 Dharmender is the cousin of deceased who stated that since Sunil was unemployed a three wheeler scooter was demanded and Kusum stated in his presence regarding demand of a three wheeler. This is again in contradiction to the dying declaration of Kusum wherein she has not mentioned anything about the demand of three wheeler. The probity of a witness is verified by his consistent and true testimony. The witnesses herein are not consistent. They have not corroborated each other. Rather there are contradictions and inconsistencies in their statement. It seems that prosecution witnesses being relatives of the deceased in their zest to nail the accused made exaggerations at the time of recording of their statement before the court. Such exaggerations are quite common in these types of witnesses. Since there are contradictions in the statement of the prosecution witnesses, I hold that the prosecution has not been able to prove beyond reasonable doubt that there were demands by the accused persons and due to non fulfillment of those demands deceased was subjected to cruelty. In view of the above stated discussion, I am of the view that the accused persons deserves to be acquitted for the offence punishable u/s 498A IPC.
24. As regards the charge of murder, the prosecution case mainly hinges upon the dying declaration of the deceased. It is not disputed that the deceased got 75% burn injuries in her nuptial home which the prosecution is claiming to be a murder while the defence claims to be a case of suicide. PW-5 Dr. Atul Gupta has stated that he conducted postmortem on the dead body of Kusum and he found superficial to deep antemortem flame burns all over the body except on a small area on upper part of face, lower aspect of left leg and back of chest and abdomen. The burnt area involved was 75% of the total body surface area. The cause of death was Septicaemic shock due to antemortem flame burns involving 75% of body surface area. Therefore it is not in dispute that she died due to burn injuries sustained in her nuptial home.
25. PW-20 Bhupinder Singh, on receipt of DD no. 26B from GTB hospital regarding admission of Kusum w/o Sunil, along with Ct. Ombir went to GTB hospital and obtained MLC of Kusum. Since she was fit for statement,he called the SDM concerned to record her statement. Tehsildar Sh. Yogesh Pal Singh FIR No.167/07 PS Nand Nagri 14/29 recorded statement of Kusum and he endorsed the same and got the FIR lodged at Police station Nand Nagri. He took the burnt pieces of clothes which were worn by Kusum lying near the bed of the Kusum in GTB hospital. He returned to the police station and handed over the statement of Kusum endorsed by Tehsildar to SHO who also made his endorsement and sent it to the duty officer for lodging the FIR. He also handed over the burnt pieces of clothes of Kusum to Inspector C. M. Meena IO of the case who seized the same. Then he along with IO Inspector C. M Meena went to the spot. IO called the crime team at the spot. Photographs of the spot were taken by the photographer of the crime team. IO seized the burn articles from the spot i.e one razai, one bedsheet, one pillow through seizure memo. IO also seized burnt piece of clothes, one plastic can, two burnt sticks and one empty matchbox. Thereafter, they reached GTB hospital where the relatives of Kusum met them. IO recorded their statements. Accused persons were arrested after conducting their personal search by the IO. On 11.3.07 Kusum was declared dead in the hospital and information in this regard was lodged vide DD no. 13/B, copy of which is mark PW20/X. He informed the Tehsildar regarding death of Kusum. Postmortem of the dead body was got conducted by Tehsildar Sh. Yogesh Pal Singh on 12.3.07. The dead body was got identified from Sunder and Ram Lal brother and father of the deceased Kusum and dead body was handed over to them. He identified the case property i.e plastic can, burnt pieces of quilt, bed sheet and pillow, some other burnt pieces of clothes and match box including burnt matchstick. The plastic can is proved as Ex. P-1. Burnt pieces of quilt, pillow and bed sheet are collectively Ex. P-2. Burnt pieces of clothes which were removed from the body of Kusum are collectively Ex. P-3. He also lifted a burnt piece of cloth from farsh of the inner room which is Ex. P-4. He also lifted the match box from the spot which is Ex. P-5. In his cross examination he has admitted it to be correct that Kusum was brought in the hospital by her in laws and mohalla people and he could not tell the name of any such mohalla people and had not recorded their statement. He admitted that house of accused is surrounded by other residential houses. IO requested several public persons to join the investigation. None of them joined the investigation. However, no notice was issued to any of them.
26. PW-21 Inspector Chattar Mal Meena is another important witness being IO of the case. He has corroborated PW-20 stating that ASI Bhupinder Singh produced burnt pieces of clothes pertaining to deceased Kusum which he seized. He along with ASI Bhupinder Singh reached at spot and summoned crime team official and got the spot photographed. Crime team official inspected FIR No.167/07 PS Nand Nagri 15/29 the spot and prepared site plan at the instance of ASI Bhupinder Singh which is Ex. PW21/A. He observed that burnt quilt, pillow and bed sheet were lying at the spot and a plastic can containing some quantity of kerosene oil. The defence counsel has stated that though witness states about the presence of kerosene oil in the can, however the CFSL report Ex.PX says that plastic container was empty and instead of 100 grams of kerosene oil bluish colored stains were found along with the lid side of the container. However, the result of chemical examination says that some higher boiling fractions of petroleum hydrocarbons similar to that of the kerosene oil were detected in the content of Ex. 41/07/E. Some burnt pieces of match box were also lying at the spot. He seized these articles after converting them in separate parcels. He further stated that PW-3 Sunder brother of the deceased produced before him a written complaint and photographs of the marriage and he seized the photographs. He also recorded statement of Sunder, Dharmender and Sumantra. The complaint which was given to him by Sunder in writing was bearing his signatures. He arrested accused Amar Singh, Sunil Kumar and Jayanti in the hospital at the instance of Sunder vide arrest memo and their personal search was conducted. He has stated that personal search of Jayanti was got conducted through lady Ct. Anita in police station, however, PW-11 W. Ct. Anita stated that accused Jayanti was not arrested in her presence. The written complaint given to him by Sunder is proved as Ex. PW21/DB. The statement of Mrs. Sumantra and Ram Lal recorded by him have been proved as Ex. PW21/BC and Ex. PW21/DD.
27. Though there are exaggerations/inconsistencies in the statement of relatives of deceased. However, the prosecution case mainly rests on the dying declaration of the deceased Kusum. The principle on which dying declarations are admitted in evidence is indicated in legal maxim:
Nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth.
It is indicative of the fact that a man who is on a death bed would not tell a lie to falsely implicate an innocent person. It is for this reason that the requirements of oath and cross examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eye witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
28. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that the accused has FIR No.167/07 PS Nand Nagri 16/29 no chance of cross examination. Such a right of cross examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be fully satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied of the aforesaid requirement and also to the fact that the declaration was true and voluntary, undoubtedly it can base its conviction without any further corroboration. It is not an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
29. It has been contended by counsel for the accused that the deceased had suicidal tendency and in the past also she tried to commit suicide. The defence has not been able to bring any evidence on record to show that the deceased committed suicide. Had the deceased committed suicide she would not have lay herself on bed as from the photographs Ex. PW14/A-1 to Ex. PW-14/A-6 it is clear that the deceased was on the cot when she sustained burn. Generally when a person commits suicide the tendency is that she would close the door but there is no such evidence on record. In his statement PW-5 Dr. Atul Gupta has clearly stated that there were superficial to deep antemortem flame burns all over the body except on a small area on upper part of face, lower aspect of left leg and back of chest and abdomen. The burnt area involved were 75% of the total body surface area. It clearly indicates that both palm of the deceased were also burnt. It is also supported by the dying declaration of the deceased Ex. PW1/A where she stated due to the bandage in her hands she is unable to show the injuries sustained by her on account of the beatings given by her husband. Such a fact indicates that she had not committed suicide because in that event the palms were not likely to be affected. In a case of homicidal burning by pouring kerosene oil on the body by another person the palms along with other parts of body will get burnt. I am fortified in my opinion by 1999 SCC (Crl.) 352 Pavankumar Parasnath Trivari Vs State of Gujarat. Further when a person holds a can containing kerosene oil in one hand or both and then pours kerosene oil on self, depending upon whether the can or the container containing kerosene oil is held by one or both hands. Kerosene oil would not fall on the hands. The second and the more powerful logical reason is the natural reaction of every person to preserve the self. If any part of the body catches fire, the instinctive reaction is to try and stamp out the fire with the use of the hands.
FIR No.167/07 PS Nand Nagri 17/29 The defensive/preventive action of self preservation would result in the hands showing burn injuries. But where a person commits suicide and lifts a can containing kerosene oil with one hand and after pouring kerosene oil on oneself sets oneself on fire, the hand with which the can was lifted would remain unaffected. The other would not be so. Being voluntarily burnt and the fire being self induced, the unaffected hand would not react to any instinctive defensive/protective action. Therefore in the case in hand the possibility of suicide is completely ruled out. Looking from another angle if the deceased was committing suicide, after pouring sufficient quantity of kerosene oil on her she must have picked up match box and lit the match stick to set herself ablaze. Had this happened, kerosene being a highly combustible liquid, the match box would have flared up in her hand and reduced to ashes, when she ignited herself. But the match box was found at the spot by the investigation officer. PW-20 ASI Bhupinder has stated that IO seized two burnt sticks and one empty match box from the spot through seizure memo Ex. PW20/D. The existence of match box at the place of occurrence, therefore, rules out the possibility of suicide having been committed by the deceased.
30. Another contention of the defence counsel is that from the dying declaration Ex. Pw-1/A it is not clear if the Tehsildar Sh. Yogesh Pal Singh before recording the statement of the patient sought a clearance from the treating doctor that the deceased was fit for making statement. He also submitted that the dying declaration Ex. PW1/A is not even attested by the attending doctor or the attending nurse, which makes the dying declaration suspect. Thus he has argued that the dying declaration Ex. PW1/A is not reliable. The Executive Magistrate PW-1 Mr. Yogesh Pal Singh is an independent witness having no reason or motive to falsely implicate the accused. He has categorically stated that when he went to GTB hospital he found Kusum admitted there. Doctor opined her fit for her statement as per her MLC. Ex PW-18/A MLC, shows the patient fit for statement. The dying declaration Ex. PW1/A shows Kusum fit for statement at 2.20 pm at the time of recording of statement. In his cross examination, PW-1 Yogesh Pal Singh has stated that he did not put any general question to the deceased Kusum except asking her name, her husband's name and address to verify if she was in a fit mental condition to give her statement. He also spoke to the doctor whose name he did not remember, to know about her fitness and he was sure about the fact that she was in a fit mental condition to give her statement, before he recorded her statement. He also stated that injured Kusum was not known to him previously and he was introduced to the patient by ASI Bhupinder Singh. He has stated that he did not obtain signatures FIR No.167/07 PS Nand Nagri 18/29 from any doctor on the statement Ex. PW1/A. No doctor was present when he recorded the statement of Kusum. However, when he began recording the statement, doctor was present and he enquired from him if Kusum was in a fit mental condition to give the statement and after he told him that she was in a fit mental condition, he began writing the statement and the doctor left. PW-1 Sh. Yogesh Pal Singh being an independent witness has no axe to grind by implicating the accused persons. He is totally an independent witness and there was no reason for him to cook up any false story. Counsel for the accused has stated that dying declaration of the deceased is not reliable because having suffered 75% burn injuries all over the body she could not be expected to be in a fit state of mind to give clear and rational statement regarding the cause of injuries suffered by her. However, perusal of her dying declaration clearly shows that she was in a fit condition of mind when her statement was recorded on 06.3.07. She has categorically stated in the statement Ex. PW1/A that on 06.3.07 she was unwell and was taking rest. Her mother in law started wrangling with her and told her that she did not do any work and would take rest all the time. When she told her that she was taking rest only after finishing the house hold chores and that she was feeling unwell, she started shouting and using intemperate language. When she went upstairs, her husband wielded a danda and gave her beatings as a result of which she sustained injuries in both her hands but could not show the same due to bandage. She also got blue marks on her leg due to beating. Her husband left after giving her beating. She started weeping and thereafter fell asleep covering her with a bed sheet. When she woke up due to inflammation, she found her suit burning and there was smell of kerosene oil. She started screaming and her entire body was ablaze. On hearing her cries, her neighbours and her family members came and they extinguished the fire. She was taken to GTB Hospital in a rickshaw by her mother in law, a neighbour and her elder sister in law. She has stated that her husband Sunil, mother in law Bhoora, brother in law Rinku and younger sister in law Neetu are responsible for her burns. She has stated that while she was asleep, they poured kerosene oil on her and set her ablaze. There is nothing on record to suggest that the deceased Kusum had been influenced by any of her relatives to make a false statement. No motive on the part of the deceased to implicate her in-laws has been shown. The truthfulness is deeply embedded in her statement. She has made specific allegations against each of the accused regarding meeting out cruel treatment to her. She has also levelled allegations against her father in law Amar Singh saying that he used to threaten her and tell her that they had fed her enough and now they would not keep her and she should go back to her parental home. Despite having a golden opportunity to FIR No.167/07 PS Nand Nagri 19/29 ensnare her father in law and to have him in clutches of law. She has not done anything of that sort. She has only inculpated her husband Sunil, mother in law Bhoora, devar Rinku and sister in law Neetu. This fact itself lays an assurance and credibility to the truthfulness of the statement. There are inconsistencies and exaggeration in the statement of relatives of the deceased who have been examined as prosecution witnesses. PW-9 Dharmender has exaggerated the incident and tried to improve on his own stating that on the day of incident when the deceased got up in the morning the sound of TV was in high volume. She asked her husband to decrease the volume and on this he asked her to cover her face and sleep and had put a sheet on her face and after sometime they set her on fire. She was held by three persons i.e Neetu, Rinku, her mother in law and Sunil had put cloth on her. However, he has also stated that father in law of Kusum was at roof when she was set on fire. This witness has also exonerated father in law of deceased Kusum. Though there are inconsistencies and improvements in the statement of other witnesses but it is the duty of the court to ensure that the truth prevails. While appreciating evidence the court has to consider carefully as to why would the deceased implicate all members of the family except one and would let go the real culprit. The statement of PW-1 Sh. Yogesh Pal Singh who recorded the dying declaration is also very crucial and cannot be brushed aside. He was totally an independent witness and there was no reason for him to concoct any false story. Similarly, the statement of PW-20 ASI Bhupinder Singh and PW-21 IO Inspector C. M. Meena are also consistent and corroborate the prosecution case.
31. It has been contended by counsel for the accused that medico legal report has not been proved properly. He has relied upon 1991 Cr. L J 310 Edward John & Ors. vs State, where a record clerk proved the MLC. However, the case in hand is totally different as herein PW-18 Dr. Devender Kumar, CMO, GTB Hospital proved the MLC prepared by Dr. Yogesh who was working under his supervision. PW-18 Dr. Davendra Kumar, CMO, GTB Hospital stated that on 6.3.2007, at about 10 a.m., Kusum was brought to GTB Hospital by one Amar Singh with alleged history of burns. Dr. Yogesh, Junior Resident, who was working under his supervision, examined the patient. Dr. Yogesh has left the services of the hospital and his whereabouts are not known. He is conversant with his handwriting and signatures as he had seen him writing and signing during the usual course of his duties. The MLC No.A-948/07 which is Ex.PW18/A is in the handwriting of Dr. Yogesh and bears his signatures at point A. The witness has not been cross examined, at all. There is no suggestion that Dr. Davendra Kumar had not seen Dr. Yogesh writing and signing and that he is not conversant with his handwriting and signature. When a witness FIR No.167/07 PS Nand Nagri 20/29 deposes a particular fact and no suggestion to the contrary is given to him in cross examination, the party against whom the deposition is made, is deemed to have admitted the fact.
32. Section 47 of the Indian Evidence Act reads as under:-
"47. Opinion as to hand-writing, when relevant.- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation. - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
21. The handwriting of a person can be proved by one or more of the following modes:-
(1) by calling as a witness a person who
wrote the document.
(2) by a person who saw it written or signed
or;
(3) by a person who is qualified to express
an opinion as to the handwriting by virtue of
s.47;
FIR No.167/07 PS Nand Nagri 21/29
(4) by a comparison of the handwriting as
provided by s.73;
(5) by admission of the person against
whom the document is tendered.
(6) by expert evidence under s.45.
(7) by internal evidence afforded by the
contents of the document.
In Gulzar Ali vs State of H.P., 1998 (2)
SCC 192, the Hon'ble Supreme Court, inter
alia, held as under:-
"It must be remembered that expert
evidence regarding handwriting is not the only
mode by which genuineness of a document
can be established. The requirement in
Section 67 of the Evidence Act is only that the
handwriting must be proved to be that of the
person concerned. In order to prove the
identity of the handwriting any mode not
forbidden by law can be resorted to. Of
course, two modes are indicated by law in
Sections 45 and 47 of the Evidence Act. The
former permits expert opinion to be regarded
as relevant evidence and the latter permits
opinion of any person acquainted with such
handwriting to be regarded as relevant
evidence."
I am also fortified in my opinion by V.N.Deosthli vs State Through CBI (Delhi), 2010(1) JCC 466. Therefore, I hold tht MLC Ex.PW18/A stands duly proved.
33. Further, from the tenor and texture of the dying declaration in the present case it is clearly evident that deceased was in a fit state of mind at the time of making her statement. Medical report on record also states that she was medically fit. Though she suffered burn injuries on 06.3.07. She died only on FIR No.167/07 PS Nand Nagri 22/29 11.3.07. This case solely hinges on the dying declaration of the deceased as she was the only witness of the incident as it took place within the four corners of her matrimonial home. The statement of relatives of the deceased who, to an extent, have exaggerated the incident is to be totally ignored as whatever they have stated is only hearsay. Basically the instant case rest on the dying declaration of the deceased and the medical evidence on record. Though the defence has tried to suggest that it was suicidal. However, they have failed to bring any evidence on record to prove the same. It could not have been accidental as she was not in the kitchen but she was in the room at the time she sustained burn injuries. Since there is no eye witness of the occurrence the statement of deceased has to be taken into consideration. The prosecution case is based on the dying declaration which is an important piece of evidence against the accused. There is no eye witness of the occurrence in this case nor it can be expected in such a case where the occurrence takes place inside the house. The Supreme Court has observed in case of Om Prakash Vs State of Punjab reported in 1992 Cr L J 3935 "It is the duty of the Court, in a case of death because of torture and demand of dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to how the death has taken place. While judging the evidence and the circumstances of the case, the court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense are not expected to be present. The finding of guilt on the charge of murder has to be recorded on the basis of circumstances of each case and the evidence adduced". The prosecution has relied on dying declaration and the circumstances while the defence is bare denial. The statement of the deceased in the dying declaration goes to show that kerosene oil was poured on her and she was ignited by her in laws while she was asleep. This statement coupled with medical evidence leaves no room for doubt that it was the case of homicide and all the accused except her father in law set her ablaze while she was asleep. The occurrence took place inside her matrimonial home and no explanation whatsoever has come forth from the accused regarding the occurrence. There is no basis to discard dying declaration of the deceased. In the present case dying declaration was recorded on 06.3.07 while she expired on 11.3.07 and the testimony of Tehsildar and the medical record establishes beyond reasonable doubt that the deceased Kusum was fully conscious and was in a fit mental condition to give her statement.
FIR No.167/07 PS Nand Nagri 23/29
34. Counsel for the accused has also contended that the dying declaration has not been recorded in a question answer form and therefore it cannot be relied upon. No doubt, the dying declaration Ex. PW1/A has not been recorded in question answer form but it is of no consequence. In AIR 1970 Goa 96 Vinayak Dutta Vs State it has been held that it is not an indispensable requirement of law that it should be recorded in a question and answer form, and not in a narrative form. It has been held by the Supreme Court in the case of Ganpat Mahadev Mane Vs State of Maharashtra reported in 1993 Cri L J 298 that the form by itself is not important. Because of the mere fact that the entire thing is not recorded by way of separate questions and answers, the value of the dying declaration is not detracted. It is also observed that a dying declaration recorded by the Executive Magistrate is entitled to great weight. The mere fact that it was not in question answer form does not detract the value of dying declaration Ex.PW1/A.
35. The next challenge of the defence is that the deceased gave tutored version. The contention of the Ld counsel for the accused is that before the dying declaration of the deceased was recorded, her family members met her. It has been stated by PW-9 Dharmender that on receipt of information they went to GTB hospital and enquired from the deceased as to how it happened and she explained the circumstances. On hearing this, they became angry and searched for in laws of Kusum in the hospital but they were not found in the hospital and thereafter when they returned they saw some officer was recording statement of Kusum which means that they had already met Kusum before her statement was recorded by the Tehsildar. From this statement itself it cannot be inferred that the dying declaration of Kusum was the result of tutoring. Merely because some relatives happened to be with the deceased before her statement was recorded, the statement cannot be thrown out as tutored. Had there been tutoring there would have been no difficulty for the deceased Kusum in making narration of the occurrence as mentioned by PW-9 Dharmender her cousin and PW-3 Sunder.
36. In a frantic effort to undo the effect of the dying declaration a suggestion was put to PW-1 Tehsildar that he had recorded the dying declaration of his own or at the instance of IO and father Ram Lal, brothers Sunder and Dharmender of the deceased. There is no substance in the suggestion because PW-1 is an independent witness and he has no axe to grind against the accused. He has neither any animosity or ill will against the accused persons nor any affinity with the deceased or her family members. PW-1 Sh. Yogesh Pal Singh, Tehsildar FIR No.167/07 PS Nand Nagri 24/29 has been subjected to incisive and searching cross examination but nothing tangible has been brought out to disbelieve his testimony. Witness has categorically stated that no one was present at the time of recording of her statement. He has stated in his cross examination that he had given directions to the security/nurses in the burn ward where Kusum was admitted that no one should enter in the room at the time of recording her statement Ex. PW1/A. Therefore the testimony of PW-1 proves that no relation was present at the time of recording of dying declaration and it was a genuine statement made by deceased Kusum in her own words in a most natural manner without any embellishment or concoction and it contains ring of truth. That she made the statement Ex. PW1/A without any influence or rancour.
37. After careful scrutiny of the dying declaration Ex. PW1/A and on careful consideration of evidence and material on record, and applying the tests laid down by the Supreme Court in various judgmets regarding dying declaration, I have no compunction in holding that the dying declaration Ex. PW1/A is true and voluntarily which was recorded by Tehsildar PW-1 Yogesh Pal Singh in very words of the deceased who was fully conscious and was in a fit mental condition to make the statement and the dying declaration does not suffer from any infirmities.
38. It has been held in a catena of cases of Supreme Court that dying declaration can be acted upon without corroboration (1986 Cri L J 836 State of UP Vs Ram Sagar Yadav, 1983 Cri L J 426 State of Assam Vs Mufijuddin Ahmad 1972 Cri L J 828 Lallu Bhai Dev Chand Shah Vs State of Gujarat and 2007 Cr.L.J. 3747 Shakuntala vs State of Haryana). The evidence of dying declaration of deceased Kusum Ex. PW1/A cannot be discarded because of the absence of eye witness to corroborate it in the court. To decline to act upon the dying declaration which finds corroboration from the medical evidence and the circumstances of the case is to defeat the cause of justice in this case. The observation of the Supreme Court are relevant in this regard. "Justice cannot be made sterile on the plea that it is better to let hundred guilty escape then punish an innocent (1990 Cri L J 562 Gurbachan Singh Vs Satpal Singh).
39. As regards the motive, there was no motive for the deceased to have implicated her in laws. On the other hand the accused persons had motive to commit this ghastly offence on account of greed and avarice for dowry or money. No doubt the prosecution has not succeeded fully to prove the dowry demand but the dying declaration is sufficient to prove the motive for the FIR No.167/07 PS Nand Nagri 25/29 accused persons to commit the offence of murder. The root cause for killing young bride was avarice and greed.
40. The defence has not put forth any explanation which could support any theory or hypothesis compatible with their innocence. There are no ground to discard the clinching, cogent and truthful evidence of dying declaration Ex. PW1/A coupled with the medical evidence and circumstances of the case. The dying declaration inspires full confidence regarding its correctness. The statement of the deceased is not a result of tutoring, prompting or a product of imagination. She was in a fit state of mind at the time of making statement. Since I am satisfied that the declaration was true and voluntarily conviction of the accused persons can be based on the statement Ex.PW1/A without any further corroboration. Since the deceased categorically stated that her husband Sunil, mother in law Jyanti @ Bhoora, Devar Rinku and sister in law Neetu (facing trial before Juvenile Justice Board) are responsible for setting her on fire and I acquit the accused Amar Singh of the charge u/s 302/34 IPC. On consideration of the entire facts and circumstances of the case as well as the material on record I hold the accused Sunil, Rinku and Jyanti @ Bhoora guilty of the offence punishable u/s 302/34 IPC, while acquitting all the accused of the charge u/s 498A/34 IPC. Let they be heard on the point of sentence.
Announced in the open court (Nisha Saxena)
Dated: 11.8.2010 Addl. Sessions Judge-05(NE):
Karkardooma Courts: Delhi.
FIR No.167/07 PS Nand Nagri 26/29
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE-
05(NE): KARKARDOOMA COURTS: DELHI.
SC No. 100/10
State vs (1) Sunil Kumar s/o Amar Singh
(2)Rinku @ Anil s/o Amar Singh
(3)Jayanti @ Bhoora w/o Amar Singh
All R/o Khasra No.264, Gali NO.5,
Meet Nagar, Delhi.
FIR NO. 167/07
PS Nand Nagri
U/s 302/34 IPC
ORDER
1. Arguments have been addressed on the point of sentence. It has been contended by Counsel for the convicts that convicts Rinku and Sunil are young people aged 22 and 24 years respectively. While convict Jayanti @ Bhoora is aged about 57 years old and suffering from various ailments. He has contended that there was no pre-planing or motive of the accused persons for commission of the crime and therefore he has urged the court to take a lenient view.
2. On the other hand the prosecution has demanded death sentence for the convicts stating that since the deceased was burnt alive within the four corners of her matrimonial home. The case falls in the category of rarest of rare case.
3. In the background of the catena of judgments on the sentence in a murder case Bachan Singh Vs State of Punjab 1980 (2) SC 684 and Machhi Singh Vs State of Punjab, 1984 (2) RCR (Crl) 412 the following propositions emerge
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the crime.
(iii) Life imprisonment is the rule and death sentence is an exception. The death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances FIR No.167/07 PS Nand Nagri 27/29 of the crime, and provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between aggravating and mitigating circumstances before the option is exercised.
4. While considering the mitigating circumstances the court has to take into account the age of the accused. If the accused is young or old, he should not be sentenced to death and the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. The probability that the accused can be reformed and rehabilitated.
5. Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. Under the present legal position, imprisonment for life is the normal rule for punishing crime of murder and sentence of death is to be awarded only in the rarest of rare cases. Incarceration potentially serves more than one sentencing aims deterrence, incapacitation, rehabilitation and retribution- all ends are capable to be furthered in different degrees, by calibrating this punishment in light of the overarching penal policy. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being and therefore puts an end to anything to do with the life. Therefore I am convinced on the point that this case does not fall in the rarest of rare dictum.
6. I may refer to the observations of Sir Walter Moberly at page 48 of his book "Ethics of Punishment", quoting Benthem:- The Principal end of punishment is to prevent like offences........... In many cases it is impossible to redress the evil that is done but it is always possible to take away the will to repeat it.
7. In the instant case, the hand which were entrusted with the welfare, safety and nourishing care of a young promising life was extinguished by them only. The atrocities which were committed on the deceased virtually shocks the conscience of this court in so far as it is difficult to imagine anything more atrocious than setting a young bride of 20 years of age ablaze mercilessly and ruthlessly. The murder was committed of a helpless woman in an extremely FIR No.167/07 PS Nand Nagri 28/29 inhuman, grotesque and brutal manner within four corners of her nuptial home so as to provoke intense annoyance and anguish of the society.
8. Keeping in view the current thought, I do not find any justification for awarding death sentence to the accused. I am of the opinion that the ends of justice would be sub-served if the accused persons are sentenced to rigorous imprisonment for life and also fine of Rs. 5000/- each in default of payment of fine, same are directed to undergo one year's simple imprisonment more.
9. The period of detention already undergone by them during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC.
10. A copy of this order as well as of judgment be given to each of convicts free of cost.
Announced in the open court. (NISHA SAXENA) On this 18th day of August, 2010. Additional Sessions Judge-
05 (NE), KKD Courts, Delhi.
FIR No.167/07 PS Nand Nagri 29/29